93 Decision Citation: BVA 93-06420
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-37 737 ) DATE
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THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to an increased evaluation for the residuals
of a gunshot wound of the left forearm, rated 10 percent
disabling.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Michael D. Lyon, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1990 rating decision of
the Des Moines, Iowa, Regional Office (RO) of the Department
of Veterans Affairs (VA). That rating action denied service
connection for PTSD and denied an increase in a 10 percent
evaluation assigned for the residuals of a gunshot wound of
the left forearm. The veteran had active military service
from December 1967 to July 1970.
The notice of disagreement was received in February 1991. A
statement of the case was furnished in May 1991. In June
1991, the veteran's substantive appeal was received. The
veteran's representative, AMVETS, made a written presentation
on his behalf in July 1991. Later in July 1991 the case was
received and docketed at the Board. A further written
presentation was made by the veteran's representative in
September 1991. In November 1991 the case was remanded for
further evidentiary development. The veteran's representa-
tive made an additional written presentation on his behalf
in November 1992. The case was returned to the Board later
that month. A further written presentation was made by the
veteran's representative in December 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection should be
established for PTSD and that an increased evaluation should
be assigned for his gunshot wound residuals of the left
forearm. It is asserted that he has been treated by a Vet
Center and a psychologist for PTSD. It is further contended
that the gunshot wound of the left forearm has resulted in
progressively debilitating symptoms warranting assignment of
a higher rating.
The veteran's representative has requested that this case be
returned to the RO, that a VA Medical Center be contacted to
ascertain whether they have additional records, and that a
further attempt be made to obtain the records of the
psychologist which the veteran mentioned.
DECISION OF THE BOARD
This section of the Board, in reaching its decision in
accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), has reviewed and considered all evidence and material
of record in the veteran's claims file. For the reasons and
bases hereinafter set forth, it is the decision of the Board
that a preponderance of the evidence is against the claims
for service connection for PTSD and an increased evaluation
for the residuals of a gunshot wound of the left forearm.
FINDINGS OF FACT
1. PTSD was not present in service and has not been shown
to be present at any time following separation from service.
2. Service-connected residuals of a gunshot wound of the
left forearm result in no more than moderate disability of
Muscle Group VIII.
CONCLUSIONS OF LAW
1. PTSD was not incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1992).
2. The criteria for an evaluation in excess of 10 percent
for the residuals of a gunshot wound of the left forearm
have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4,
Code 5308.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran's claims are well grounded within the meaning of
38 U.S.C.A. § 5107(a). That is, the claims are not
inherently implausible.
At the time this case was previously before the Board, it
was remanded for further evidentiary development. It was
requested that the RO contact the veteran for the purpose of
obtaining appropriate release forms to obtain medical
records from a private psychologist and a Vet Center where
he claimed treatment. It was further requested that a
special orthopedic evaluation be conducted to determine the
current nature and extent of the service-connected gunshot
wound residuals. The RO contacted the veteran, at his
last-known mailing address, for the purpose of obtaining
appropriate release forms and they were not signed and
returned. The veteran was also informed that he could
obtain the information in question. The veteran did not
respond.
Similarly, examinations were scheduled and such
reexaminations are within the authority of the VA. See
38 C.F.R. § 3.327. The veteran failed, without stated
reason, to report for the examinations. Accordingly, the
case must now be evaluated based on the evidence of record.
38 C.F.R. § 3.655. The duty to assist is not a one-way
street. Wood v. Derwinski, 1 Vet.App. 190 (1991).
The veteran's representative has requested that the case be
returned for the purposes of having the RO contact a VA
Medical Center to ascertain whether any treatment of this
veteran has been undertaken. The record does not reveal
that there has been any pertinent treatment of this veteran
nor has any been claimed. The duty to assist is not a
license for a "fishing expedition" to determine if there
might be some unspecified information that could possibly
support a claim. Gobber v. Derwinski, 2 Vet.App. 470, 472
(1992).
It has also been asserted that a statement from the veteran
to the effect that he was receiving treatment from a private
psychologist would be sufficient to obtain those records.
We see no basis for concluding that this document would be
sufficient for obtaining the records from a private
physician.
As such, in view of the veteran's lack of cooperation in
assisting in the development of his claim, we must proceed
to evaluate the individual claims on the basis of the
evidence of record. We conclude that the VA duty to assist
under 38 U.S.C.A. § 5107(a) has been completed.
I. Service Connection for PTSD
To establish service connection it is required that the
facts, as shown by the evidence, establish that a particular
injury or disease resulting in chronic disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. It is a basic tenet
of service connection that the disability currently exist.
See also, Rabideau v. Derwinski, 2 Vet.App. 141 (1992).
In this case the veteran's service and post-service medical
records available to the Board are negative for diagnosis of
PTSD. The veteran was seen in November 1969, during service,
following an aggressive episode. The diagnosis was aggres-
sive personality. Personality disorders are not subject to
service connection. 38 C.F.R. § 3.303(c). The veteran was
discharged from service under honorable conditions in July
1970, on the grounds of being unsuitable.
Post-service medical records on file, while showing other
psychiatric and behavioral disorders, fail to reveal a
diagnosis of PTSD. The veteran, following a January 1991 VA
compensation examination, was diagnosed as having depression
and anxiety, polysubstance abuse, and adult antisocial
behavior. After examining the veteran and reviewing his
history, the examiner noted there was little evidence
supporting a diagnosis of PTSD; and PTSD was not diagnosed.
As part of a remand development, the veteran was requested
to provide release forms so that records from a private
psychologist (Dr. Witherspoon, who allegedly had diagnosed
PTSD years ago) could be obtained. He did not cooperate and,
as such, the VA has no way to obtain those records. There
are some records on file from the Vet Center, where the
veteran claimed treatment, and they too are negative for
diagnosis of PTSD. The veteran failed to report for an
examination in October 1992 for the purposes of ascertaining
whether PTSD was currently shown.
In light of the preponderance of the evidence, which shows
no PTSD, there is no basis for establishing service
connection.
II. Residuals of a Gunshot Wound of
the Left Arm
Disability evaluations are determined by the application of
a schedule of ratings which is on the average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4,
§ 4.1. Separate diagnostic codes identify the various
disabilities.
Residuals of a gunshot wound of the left forearm, the minor
extremity, involving Muscle Group VIII, will be evaluated
20 percent disabling where moderately severe or 10 percent
disabling where moderate. 38 C.F.R. Part 4, Code 5308.
The disability evaluation to be assigned for the residuals
of a missile injury must include a historical review of the
extent of the original traumatic injury, and the course of
the residual disability in ensuing years. See 38 C.F.R.
§§ 4.1, 4.2, 4.40, 4.41, 4.47-4.56, 4.72; Schafrath v.
Derwinski, 1 Vet.App. 589 (1991).
The service medical records in this case contain very little
information concerning the actual service wounding. The
veteran was awarded the Purple Heart Medal for being wounded
in action, in the left arm, in August 1968. Records from
May 1969 contain a recorded complaint of pain for old wounds
of the left arm. No specific findings were entered at that
time. On subsequent physical examinations the residual scar
on the forearm was noted. A July 1969 general examination
noted the upper extremities were normal, with the exception
of a well-healed laceration of the left forearm and a small
subcutaneous cyst. The June 1970 service discharge examina-
tion contains no pertinent information.
The first VA compensation examination following service,
conducted in April 1971, notes a history that the veteran
sustained a gunshot wound in August 1968. The wound was
reportedly debrided, resutured, and the veteran spent
approximately one month in a rehabilitation center before
being returned to full duty. He reported that his arm
bothered him once in a while and ached when the weather
changes or when he did heavy lifting. Physical examination
revealed two dense scars over the left forearm. One
measured 3 1/2 inches in length over the posterior aspect of
the left forearm, close to the elbow. The other measured
5 inches in length on the anterior aspect of the left
forearm, close to the anterior tubercle fossa. There was no
obvious muscle atrophy. An orthopedic evaluation was also
conducted. The scars were again noted. There was reported
to be a 2.5 centimeter bulge at the dorsal-ulnar aspect of
the left proximal forearm. X-rays of the left forearm, in
two views, revealed no evidence of bone or joint pathology.
There was a full range of motion of the left elbow and wrist.
Following this examination the RO granted a 10 percent
disability rating for damage to Muscle Group VIII of the
left forearm. This is the veteran's minor extremity (he is
right-handed). A 10 percent disability rating under
Diagnostic Code 5308 contemplates moderate impairment. As
this evaluation has been in effect for over 20 years, it is
now protected from reduction under the provisions of
38 U.S.C.A. § 110.
Review of the remaining record available to us fails to
reveal any significant clinical findings concerning the left
arm. A June 1990 VA outpatient record, while primarily
concerned with psychiatric symptoms, mentions the veteran
complained of weakness and aching of the left forearm and
hand since working at a manual labor job; strength of the
involved muscles was noted to be 4/5. A physical examination
was requested pursuant to the Board remand of November 1991.
Documents on file show that VA examinations were scheduled
and rescheduled in 1992, but the veteran failed to report
for examination. Repeated efforts by the RO and the
veteran's local AMVETS representative, to have the veteran
report for examination, have proved unsuccessful. As such,
we must enter our decision based on the evidence now of
record. 38 C.F.R. § 3.655.
The description of the left forearm disability as found in
the records before us reflects no more than moderate injury
to Muscle Group VIII, as contemplated by Code 5308 and the
previously cited regulations pertaining to evaluating gunshot
wounds, including 38 C.F.R. § 4.56(2). Thus a higher rating
than 10 percent is not in order. If the veteran wants to
again apply for an increased rating, he should contact the
RO and should understand that he is obligated to report for
any compensation examination which is scheduled.
ORDER
Service connection for PTSD is denied. An increased
evaluation for the residuals of a gunshot wound of the left
forearm is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) STEPHEN A. JONES
L. W. TOBIN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
(CONTINUED ON NEXT PAGE)
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.